Trade Practices Act Is Basis for Australian Complaint Against SCO

Is SCO breaking the law? Con Zymaris explains the Open Source Victoria complaint in Australia and offers advice for reporting SCO to the correct regulatory agency in your country.

Open
Source Victoria has filed a complaint with the Australian
Competition and Consumer Commission against SCO. The tactic of
using unsubstantiated claims and extortive legal threats to extract
money from millions of Linux users may well be illegal in many
countries, including Australia.

SCO's latest action was the recent registration of copyright
to the legacy UNIX SYSTEM V source code, on which the company's
already claimed copyright publicly. Regardless, this in no way
affects Linux. Copyright registration is a simple filing procedure
that formally registers a claim and does not in any way constitute
proof of ownership.

Although this particular salvo from SCO seems to be one more
round in a possibly long and tedious legal affair, what SCO has
done finally is given average Linux users a chance to raise a
serious legal objection. Here's why.

In many countries there exists consumer protection
legislation that prevents any organisation from running schemes
that try to convince consumers they owe that organisation something
when they clearly do not. This type of consumer protection
generally is called Misrepresentation of Need. For example, it
prevents domain name registration scammers from hitting up hapless
consumers for money, offering these consumers renewals on their
domain name registrations made to look like the consumers have no
choice but to comply and pay. In Australia, quite a number of these
firms have ended up in court, taken there by the
Australian Competition and
Consumer Commission. It is to this Commission that Open
Source Victoria, along with many other Australian Linux users, have
filed complaints.

When Linux users use their countries' laws to protect against
SCO's latest actions, SCO backs off from trying to use this suspect
tactic. The German organization LinuxTag already has
forced
SCO to remove its claims from the sco.de web site, and SCO
has not been able to make the so-called licensing offer
there.

SCO has yet to prove the existence of any disputed source in
the Linux codebase. With its insistence on withholding public
disclosure of any worthwhile evidence in this case, SCO gives the
impression that
a
recent piece by Bryan Taylor refutes the major claims that
SCO has made. SCO stopped offering source code access under NDA to
qualified C programmers after Ian Lance Taylor, author of much
open-source and proprietary software,
reported,
"The code is fairly trivial--the kind of stuff I wrote in school.
The similar portions of the code were some 80 lines or so. Looking
around the Net, I found close variants of the code, with the same
comments and variable names, in sources other than Linux
distributions."

SCO will find it extremely difficult to cement its claims in
court, and until it does, the company is spreading fear to extract
money from innocent and unsuspecting users. It is this fact that we
are now taking advantage of to raise action against SCO
itself.

So, what can you do? You can try and locate your local
version of the consumer laws that prevent misrepresentation of need
scams. In Australia, we have the Australian Trade Practices Act.
Here's some of the snippets from that Act.

A corporation shall not, in trade or commerce, in connexion
with the supply or possible supply of goods or services or in
connexion with the promotion by any means of the supply or use of
goods or services:

(c) represent that goods or services have sponsorship,
approval, performance characteristics, accessories, uses or
benefits they do not have;

(Specifically, SCO seems to be claiming that the
purchase of a UnixWare license grants the benefit of permitting
legal use of Linux, which is not the case. Thanks to Andrew Pam for
this)

(f) make a false or misleading representation concerning the
need for any goods or services; or

(g) make a false or misleading representation concerning the
existence, exclusion or effect of any condition, warranty,
guarantee, right or remedy.

(Specifically, SCO seems to be claiming that Linux
users need to purchase a license from them, a license that has not
been proven in court to be a constituted
requirement.)

You can use this emphasis and language content to help you
find the equivalent laws in your legal domain. Next, you need to
prepare a complaint to file with your consumer watchdog, and some
background information on this whole subject for their watchdog
investigators to ruminate on.

SCO has offices in
numerous countries. See if your country has one. If so,
provide your watchdog with local company information. Filing a
complaint against the local representation will have a chance of
working. Filing it against an off-shore concern probably will
not.

SCO's latest press release, which elucidates the protection
money request, is
here.
You should alert your consumer watchdog that you believe that SCO
is entering into conduct both misleading and deceptive to all Linux
users in your country. SCO has no verified claims whatsoever on
Linux, and the company is using the press to scare Linux users into
forking over money for protection.

Remember, you may be well versed in IT, Linux and this whole
fiasco, but the watchdog groups likely are not, so any help you can
offer works to speed up their investigations.

To see why The SCO Group has no claims to any such money,
read this detailed
analysis and the recommended articles it cites.

If we raise enough of a tsunami, SCO may think twice about
pursuing this action against Linux users in countries that have
consumer protection. We, the community, are using this style of
defense as a signpost of warning to any others who attempt such
unjustifiable acts against Linux or other open-source software in
future.

Comment viewing options

It's not only theTrade Practices Act that SCO has to consider. Before they even threaten to assert copyright against any Australian Linux user, they had better read this provision of the Copyright Act, very carefully, lest they want an Australian court to settle the matter of their supposed ownership of Linux code:
Section 202: Groundless threats of legal proceedings

(1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of copyright, then, whether the person making the threats is or is not the owner of the copyright or an exclusive licensee, a person aggrieved may bring an action against the first-mentioned person and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats, and may recover such damages (if any) as he or she has sustained, unless the first-mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or, if done, would constitute, an infringement of copyright.

(2) The mere notification of the existence of a copyright does not constitute a threat of an action or proceeding within the meaning of this section.

So hey SCO! Do y'know what? I wrote GPL code and you've stolen it and put it in your UnixWare and OpenServer. Which code? Of course I can't tell you! I won't tell you! But the code is mine! So gimme money! Now!

The SCO case against Linux, and the reactions of the media and business shows that many people have swallowed the line that there is no way that a group of engineers and programmers could possibly create something "new" and provide it for free - therefore it _must_ have been stolen. Therefore there is tacit agreement, without investigation, that this group infringe copyrights, patents or IP law.

The scary thing about this is that it almost being said that only corporations can be creative and produce something new - which is very far from the truth since corporations never produce innovation, people do. What corporations used to provide was community - an environment where cooperation, delevelopment and design could occur between people. In todays world this is no-longer requried. The internet was created by the mindset that people can work together effectively without a corporation around them and this in turn has created groups of visionary people who work together and produce world leading software.

The truth is that the GPL and its similar licenses create the most innovative form of licensing, there are no secrets and lock-in, value and financial reward are possible through services. Competition is there to provide better and more cost effective services. This is in fact an evolution of competition.

This is more competitive that typical capitalism, which relies on secrets, patents and licenses to create lock-in, poor service and delivery because there is no real competition.

RICO in the United States can be used to seize all of SCo's assets including any real porperty owned by the parties, their investors, their litigants, their legal fees, any money they have earned from this scam and any money they may have in svaings, goods and real property. It was used in the S&L Scandal, and it can be liberally applied here as well. That would be the ultimate lesson. Justice may be blind, but she shouldn't be as asleep as she is on this one.

Liberally! I love it! How appropriate. The RICO laws and their use against corporations is a typical liberal abuse of our democratic system. Liberals get these laws instituted to interfere with and unfairly punish corporations who are the driving force behind our economy. Liberals whine and pander to big government and big union bosses wherever possible to ensure their corrupt interests get served ahead of those of law abiding citizens of this country. If you people really have an issue with SCO why don't you hash it out where it belongs, in the open market, not by encouraging big government sponsored, liberally biased laws like RICO.

If SCO were working in the free market they would have long ago published all the code that they claim is actually theirs.

Actually the only claim that SCO supposedly has is that IBM violated a contract clause and disclosed propietary code.

It is a long ways from arguing about code publication, which in fact they should prove has harmed them, and threatening Linux users, and then offering a license. That smacks like a protection racket to me.

Germany, now Australia seem to be leaning for court day first and then you collect.

If you're going to try to sound like a conservative, at least try to sound intelligent. First off we don't have a democratic system, that's tyranny. We have a republican government, albiet a democratic republic it is still representative government.

Now that we have that out of the way explain to me how SCO is doing this in the open market or how M$ used the open market. Don't be a maroon. Using goons for extortion may be okay with you and SCO's use of attorneys for it might seem first class to you. However SCO didn't buy legacy code and start filing lawsuits to compete in the open market. In case you didn't notice their revenue has been sinking like the Titanic.

It's true however that a number of people try to demonstrate a small degree of intelligence suggesting RICO simply because they are incensed by SCO. RICO allows for heavy criminal prosecution of organized crime types when you can only prove a tiny amount of the scope of crime going on. To even use it they have to do something like use the mails for an illegal activity. You are at least correct that this is a weak and far reaching attempt that takes the place of demonstrable real criminal activity.

Con Zymaris is right as usual here. Consumer protection laws should be in effect at this time. The SEC should be looking inot SCO's latest aquisition as well as stock being dumped by top execs too, but some of this requires something more than the appearance of impropriety to send the bastards to jail.

Find someone with shares in SCO or if you have shares in SCO and bring a derivative action on behalf of all shareholders of SCO against management of SCO . SCO's management actions could have seriously negative long term consequences to shareholder value.